Tom Miller writes in National Affairs about one seldom-discussed flaw in the Affordable Care Act.
It is natural to think of the enactment of a piece of legislation into law as the end of the process by which it takes form. But in our times, the president’s signature on a bill is often only the beginning of a long and convoluted process of policy formulation. Congress frequently enacts vague and broadly worded statutes that give the president enormous administrative leeway, and the courts are then called in to resolve any disputes over the law’s implementation. On rare occasions, Congress even steps back into the arena to revise or modify a statute in response to controversies over its implementation. Then the process begins again.
The Affordable Care Act (ACA), signed into law by President Barack Obama on March 23, 2010, offers something like the apotheosis of this peculiar model of governance. The law as written left a host of crucial questions open, quite intentionally. And we have since seen three administrations, numerous courts, and several congresses attempt to address those questions in a variety of ways.
More than a decade after its enactment, this exceedingly malleable law has shape-shifted again and again. Those changes may have started out of necessity and desperation, with an initial phase of course corrections and adjustments intended to handle a challenging period of implementation and defend the law from multiple legal challenges. But soon enough, these changes evolved into political and policy warfare that treated the law itself as an arena for contention rather than a blueprint for administration. …
… The ACA has faced threats to its survival from the moment of its enactment. Although Republicans made several attempts to overturn the law in Congress, the true near-death experiences it confronted in its first few years took place in the courts, while its practical evolution was largely the work of regulators in the executive branch responding to resistance from the states.
